Richardson v. State

• Decision Date: 21 April 1971
• Docket Number: No. 38003,38003
• Citation: 247 So.2d 296
• Parties: James Joseph RICHARDSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 296

247 So.2d 296

James Joseph RICHARDSON, Appellant, v. STATE of Florida, Appellee.

No. 38003.

Supreme Court of Florida.

April 21, 1971.

John Spencer Robinson of Robinson & Whitson, Daytona Beach, for appellant.

Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

PER CURIAM.

This cause is before us on appeal from the Circuit Court of the Twelfth Judicial Circuit in and for Lee County, to review the lengthy proceedings wherein the appellant, hereinafter referred to as defendant, James Joseph Richardson, was convicted of murdering his stepdaughter, Betty Jean Bryant. The jury did not recommend mercy and a sentence of death was imposed.

The testimony at the trial revealed that the victim, an eleven-year-old child, along with six younger children, three of whom were the natural children of the defendant, were fed massive amounts of parathion poisoning for lunch while their parents were miles away picking fruit. The poison had been placed in almost all of the food which the children might have eaten for lunch. It was never contended that this could have been accidental.

The State adduced the testimony of a series of witnesses as to the toxological and pharmacological analysis of the tissues of the deceased and the contents of the cooking vessel from which the victim took her lunch on the day of her death. These analyses revealed high level concentration of the organic phosphate, parathion, a highly toxic insecticide. The cause of death was thus determined by a postmortem examination as well as the testimony of a number of teachers at the elementary school regarding the victim's symptoms after she returned from lunch that day. Also in evidence was the testimony of the doctors regarding the symptoms of the dying children as they found them in the hospital and commenced treatment.

James Cunningham, a witness for the State, testified that he was a prisoner in the County Jail in Arcadia when the defendant was first incarcerated. He testified that defendant, in a conversation with him, admitted that he had killed his children. Cunningham also testified that he overheard a conversation in the jail between the defendant and another prisoner named Ernell Washington, during which Washington asked him if he did kill his children, whereupon defendant said, 'Yes.' Cunningham further testified that defendant's wife, who had also been incarcerated but who was being kept on the floor above him, called down to the defendant asking, 'Why did you kill my children?' Another state witness, James Weaver, also testified that while an inmate in the Arcadia jail, defendant told him that he had killed his children but did not state why.

Defendant's first point on appeal to this Court is that the State has failed to prove the material elements of its case beyond a reasonable doubt. As indicated by the evidence summarized above, the record refutes defendant's contention in this regard. Indeed, a thorough review of the entire record reveals evidence more than adequate to establish defendant's guilt of murder in the first degree beyond and to the exclusion of a reasonable doubt.

The next point on appeal is the trial court's asserted error in refusal to grant defendant's motion to suppress evidence taken from defendant's house. The specific items of evidence objected to on motion to suppress included two bags of parathion, a plastic bag for parathion, an eight-inch pot lid and a frying pan.

The factual background of the search of defendant's premises in this case is unique in that the search was made for the purpose of identifying the poison substance eaten by the children in an effort to save their lives. On the day of the tragedy, the children came home from school shortly after 11:00 a.m. and consumed the poisoned food. Within minutes all of them began showing symptoms of extreme pain. The school teacher and neighbors rushed the children to a local hospital for treatment. Notice was sent to the parents to come to the hospital. When Sheriff Frank Cline of DeSoto County learned that the children were critically sick and dying as a result of some substance they had apparently consumed at home, the Sheriff rushed to the home to determine what type of chemical the children had consumed. At this time the children were still alive and the purpose of the search was to enable doctors to provide proper treatment. Nothing was removed from the premises at this time by the Sheriff.

The Sheriff then went to the hospital and talked to defendant Richardson. He told defendant he would like to look around the house and Richardson gave him the keys to the refrigerator which he had around his neck and invited him to make a further and complete inspection of the premises. The Sheriff and his assistants then returned to the premises and removed the poisoned food and containers in which it was cooked and eaten from the premises. Defendant claims that the Sheriff should have warned him of his constitutional rights before making the search. However, at the time of this search, there was no reason to suspect that any crime had been committed and certainly no reason to suspect that defendant had poisoned the children.

The Sheriff went back to the home on several occasions after the first visit and on one occasion the defendant was there and helped him search. There was still no apparent reason to suspect foul play. During the first four visits to the premises, articles were taken and given to agricultural and chemical experts, as well as toxocological experts for analysis. These were taken as a result of defendant's voluntary consent that the Sheriff have free rein to look over the premises so that he might find whatever it was that might have caused the death of the children. Thereafter a search warrant was secured and further articles were taken in pursuance thereof, all of which were turned over to experts for detailed examination. The search warrant was secured after it was discovered that on the very night before the tragedy, defendant had contracted to insure the lives of all of the children, each in the amount of $1,000. This fact, coupled with certain other evidence, made the defendant highly suspect, so the search warrant was issued.

The trial court properly denied the motion to suppress in this case. The initial searches of the premises were made for the purpose of aiding doctors to save the children's lives and before defendant became suspect. Furthermore, the initial searches were made with defendant's consent and subsequent searches with a search warrant.

Defendant's Point Three on appeal is that the trial court erred in not having a court reporter present at the preliminary hearing and at the pretrial voir dire examination of the veniremen. Point Four on appeal is related in that it involves the alleged error of the trial court in excusing fifteen jurors for cause for opposing the death penalty, contrary to the rule of the United States Supreme Court laid down in Witherspoon v Illinois. ¹

Florida Statutes § 43.06, F.S.A., provides that proceedings shall be reported in constitutional courts of Florida if the State or the defense shall move for same or that the Court, in its discretion may require the proceedings reported. The record before us does not reveal that any request was made by the defendant or his attorney to have either the preliminary hearing or the voir dire examination reported. If the defendant had wanted a reporter present, the filing of a written motion would have preserved his objection to the court's ruling. No such motion was filed. A reporter was present at the voir dire examination but simply noted the identification of the jurors and a finding by the court that all jurors had been examined and found qualified to serve under the laws of Florida. The identity of the excluded jurors, the specific questions propounded to them and answers given, are not preserved in the record nor stated by the defendant in any way. In his motion for a new trial, defendant raises many points but does not raise the objection that jorors were excluded because of their views relating to capital punishment contrary to the Witherspoon doctrine.

The record comes to this Court with the presumption that the learned trial judge knew and followed the law. We presume that the trial court was fully aware of the holding in Witherspoon and mindful that for many years prior to the holding in Witherspoon, the standards laid out therein had been followed by the State of Florida. ² It is our view that a defendant who is unhappy with the results of a criminal proceeding at which he did not request the making of a record should not be permitted new trial on the ground that no record was made. ³

Another point on appeal is the alleged error of the trial court in allowing state witnesses Bryant, Oppel, Whidden and Hollingsworth to testify as to their recollection of Ernell Washington's testimony at the preliminary hearing. At the preliminary hearing on March 25, 1968, Ernell Washington testified that he was a prisoner in the DeSoto County Jail at the time defendant was first incarcerated; that he heard defendant confess that he poisoned the children and that he did so to eliminate problems arising with his wife and her former husband, the natural father of one of the victims. After Washington's testimony at the preliminary hearing and before the trial, he was murdered.

No court reporter was present and no official record was made of Ernell Washington's testimony at the preliminary hearing. However, the defendant was present and represented by counsel at the time Washington testified. Furthermore, defendant's attorney cross-examined Washington at that time.

The trial court permitted Thelma Ted Bryant, reporter for the Fort Myers News Press and Tampa Tribune; Richard Oppel, a reporter for the Associated Press; Worley Whidden, an Arcadia real estate broker; T. R. Hollingsworth, a salesman; and John Treadwell, an...